Sunshine Week: Your Right to Know

News analysis

The U.S. Supreme Court heard oral arguments recently in a pair of cases that could determine the strength and jurisdiction of the First Amendment, and, in turn, the future of open government.

At first glance, the cases — Moody v. NetChoice and NetChoice v. Paxton — seem to have nothing to do with open government. In the cases, the justices will determine whether Texas and Florida can prohibit NetChoice and other tech platforms from deciding what content they will allow on their private social media platforms.

Specifically, the Florida law requires platforms to keep accounts active for political candidates prior to an election, while the Texas law bans large social media companies from viewpoint discrimination.

In a twist, the trade association NetChoice and its tech company members argue that the laws violate their First Amendment rights to moderate the content on their own private platforms and to ban speech the companies find to be offensive and vile.

On the other hand, the laws’ supporters say government uses social media companies both directly and indirectly to silence government opponents — in effect, to do for the government what the government cannot do for itself, which courts have long ago decided was also unconstitutional.

Open government advocates are watching the court cases, too, some with ambivalence, others with intense focus. Inside open government circles, some observers think the issue of censorship is diverting attention away from the daily workings of government and from ensuring compliance with robust open records and open meetings laws.

Others believe the free speech issues are central to the open government debate. In this view, while traditional open government activities revolve around transparency in government proceedings, an inability to challenge government narratives —the essence of censorship — necessarily precludes being able to challenge the government through review of its decision-making processes.

In other words, in a free-speechless world of censorship, citizens may have a formal right to ask for records or transcripts of government meetings, but in reality they would have no real information about what to ask for in the first place, and, should they somehow receive records, they would lack any ability or right to challenge or question what they find in those records.

Their voice, no choice

While there are other important free-speech cases headed for the Supreme Court — journalist Alex Berenson’s lawsuit against the Biden administration, as well as Missouri v Biden — those cases involve direct government action to suppress voices on social media.

The NetChoice cases are different, for they do not revolve around direct government intervention, only the indirect effects of allowing private platforms that operate as “public squares” to silence voices they don’t like.

Those who back NetChoice — and that apparently includes some conservative justices such as Brett Kavanaugh — believe the platforms have every right to suppress whatever voices they choose to, and that the states’ actions are the very kind of free speech suppression the First Amendment intended to prevent.

“When the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment,” Kavanaugh said in oral arguments. “When a private individual, or private entity, makes decisions about what to include and what to exclude, that’s protected, generally, editorial discretion, even though you could view the private entity’s decision to exclude something as, quote, ‘private censorship.’”

Likewise, the Foundation for Individual Rights and Expression (FIRE) argues that state efforts to regulate how platforms respond to complaints about their moderation practices intrude deeply into the editorial process and violate the First Amendment. 

“The Texas prohibition against ‘viewpoint based’ moderation dictates the substance of platforms’ editorial policies and directly infringes their constitutional prerogatives,” FIRE’s brief states. 

But others, such as U.S. Sen. Josh Hawley (R-Missouri), argue that the case is not so simple or cut-and-dried. In an amicus brief filed in support of the state laws, Hawley argued that American publication law has always reflected a commonsense principle: individuals who play an active role in disseminating others’ speech are liable for any unlawful harm that speech causes. 

Over time, Hawley argued, Congress and the courts needed to square that principle with the realities of the internet age, in which tech platforms host — but do not carefully vet — vast amounts of individual users’ speech. 

“The result was Section 230 of the Communications Decency Act, which broadly insulated platforms from civil liability for hosting user-generated content,” Hawley wrote. “At the time, Section 230 was justified on the theory that platforms could not exercise publisher-level control over the speech generated by third-party users.”

Now, Hawley observed, despite decades arguing for this position, tech platforms take precisely the opposite line. 

“They claim that their content hosting and curation decisions are in fact expressive — expressive enough that they enjoy First Amendment protection,” he wrote. “The Court should not bless the platforms’ contradictory positions, much less constitutionalize them. Doing so would effectively immunize the platforms from both civil liability in tort and regulatory oversight by legislators.”

Among other harms, Hawley wrote, such a ruling would undercut the court’s recent Twitter v. Taamneh decision, which was predicated on the assumption that companies do not exercise substantial control over the content on their platforms. 

“It would also disrupt the policy logic behind both Section 230 and the American publisher-liability regime as a whole, granting vast and unprecedented powers to the tech industry,” he wrote. “That sector is not, and never has been, entitled to blanket immunity.”

In a brief supporting the state laws, former President Donald Trump cautioned that “behemoth” social media platforms had seriously leveraged economic power into a means of affecting the community’s political life.

“This concern is heightened because platforms often shroud decisions to exclude certain users and viewpoints in secrecy, giving no meaningful explanation as to why certain users are excluded while others posting equivalent content are tolerated,” Trump’s brief stated.

Entities that do not make individualized determinations as to who may use their services are generally considered common carriers, Trump argued.

“Platforms with hundreds of millions of daily users, who hold themselves out as admitting all comers, easily meet this standard,” his brief stated. “And entities that enjoy special privileges bestowed by a government have long been deemed common carriers. As Section 230 is precisely such a special privilege, platforms are common carriers under this standard as well.”

What’s more, Trump argued, Section 230 immunity allows platforms to amass and deploy financial resources on a scale that can be matched by few people and even by few corporations.

“This immunity is unique to the publishing industry; newspapers and television stations get no such protection and are plagued by costly and burdensome lawsuits,” his brief states. 

The Trump brief observed that a judge in the Texas case even intoned that “the platforms are just as dependent on 230’s liability shield as the old railroad companies were on the ability to traverse land acquired via eminent domain.” 

“The similarities between the railroads and social media extend beyond their mutual indebtedness to special privileges; it also includes the noxious practice of unfairly discriminating against users,” the Trump brief stated. “Despite holding themselves out to everyone and enjoying special privileges from the government, certain railroads of the Gilded Age — like some platforms today —abused this public trust, giving preferential treatment to favored customers. Courts brought these practices to heel by holding that, as the recipients of generous special privileges from the government, the railroads were common carriers, prohibited from engaging in unfair discrimination.”

Hamburger helper

One of the most insightful of the amicus briefs filed was in the Florida case, by Columbia Law School professor Philip Hamburger, who is also a founder and CEO of the New Civil Liberties Alliance, a civil liberties organization. 

Hamburger helped craft the Texas law banning viewpoint discrimination. 

Essentially, Hamburger argued that the tech platforms are common carriers and that common carrier anti-discrimination laws are the foundation of the nation’s civil rights laws. While he said there is substantial evidence that the government engaged in censorship through those private companies, Hamburger argued that the anti-discrimination laws would be important even if there was no such evidence because “common carrier anti-discrimination statutes are essential barriers against privatized censorship — against the government’s use of private companies to suppress opponents in ways it cannot.”

“If we are to have a free society, individuals must be left to judge all sorts of things for themselves,” Hamburger wrote. “And to exercise their own judgment, individuals must enjoy a freedom from censorship, whether governmental or private. They need to figure out how to vote in elections, what precautions or medicines to take against health risks, and what conduct they should view with approbation or opprobrium. But when they are censored, they cannot do any of this with confidence.”

The platforms’ censorship suppresses academic papers, reports of medical cases, passionate disagreements, moderate colloquies, videos, and cartoons, Hamburger observed.

“And because the government has taken a political stance on things such as science, medicine, and elections, the censorship of dissenting views on these matters is the suppression of political opposition,” he wrote. “All of this is like placing tape over the mouths, ears, and eyes of Americans. It prevents them from expressing and receiving what they need in order to sort out their various predicaments, whether political, religious, sexual, cultural, scientific, or merely personal. It treats them as infants, incapable of reaching their own judgments.”

Even when a claim of misinformation clearly is correct, Hamburger continued, the suppression of free speech and debate is profoundly harmful to individuals. 

“The censorship deprives individuals of their voice and their hearing,” he wrote. “It converts matters of opinion into certainties dictated from above, whether by the platforms or ultimately the government. And it leaves individuals wondering what inputs they are missing.”

In such ways, Hamburger argued, it undermines their confidence in their own informed judgment. 

“No longer independent participants in society and government, they become the intellectual equivalent of sheep, mentally herded by their keepers in the platforms and the overseers in the government,” he wrote. “The censorship is rapidly redefining American society. Each of us are affected by what we don’t hear. Many are afraid to say what is on their minds, lest they be censored or even permanently barred from participating in discussion.”

Others, in contrast, confidently assume only reprehensible opinions or persons are silenced — not realizing that much of what was censored has turned out to be prophetically correct, Hamburger wrote: “Censorship breeds a poisonous combination of fear and censoriousness.”

In many ways, Hamburger argued, the cases are a contest between the speech rights of Americans and the “strange speech freedom of the platforms,” which he argued has no basis in precedent and that eats up the freedom of individuals. 

“More accurately, it is a contest between the speech rights of individuals and the government-backed censorship of the platforms,” he wrote. “So if the novel speech claims of the platforms are upheld, the well-established speech claims of all others will be defeated.”

The power of government pressure

In the cases, Hamburger observed, there was no evidence presented of the massive government censorship machine that was built during the Biden years.

“The evidence missing from the record here is critical, as it reveals the details and depth of government’s role,” he wrote. “The discovery in Missouri v. Biden and other documentation — all absent from this case — show not merely generic attempts at influence, but a massive governmental–private partnership to silence people who don’t conform.”

Hamburger said the government outsourced not merely the censorship but even the demands for censorship, perhaps conscious that its privatization of censorship would not really shield it from the First Amendment. 

“It worked with a consortium called the Election Integrity Partnership,” he wrote. “The private organizations belonging to that consortium conveyed expectations for censorship to the private platforms, which in turn often acted on such suggestions. This was a double layer of privatization.”

All this evidence shows a range of pressures, badgering, and cooperation, Hamburger wrote. 

“Even the cooperation that seems voluntary was not merely voluntary,” he wrote. “The badgering has been widespread and persistent, and the cooperation has taken place in the shadow of government power —indeed, in the shadow of government threats that it will be used against the platforms.”

Even if the censorship were entirely voluntary — not at all in the shadow of power and threats—the government participation is profoundly dangerous because it serves as a means of coordination, Hamburger argued. 

“A platform cannot successfully censor material if another platform will publish it,” he wrote. “The government, however, solves this problem by offering coordination, which allows the platforms to align their censorship — so individuals suppressed on one platform cannot express themselves on another. The resulting censorship cannot be considered merely private. The companies may be private, but much of their censorship has been privatized government suppression.”

Rather than just regulation, common carrier law is an essential protection against discrimination, and, as applied to communications carriers, it is a crucial shield against government pressures for censorship, Hamburger contended.

“Censorship is difficult to impose in a free society without a partnership between government and dominant private entities,” he wrote. “Therefore — whether in seventeenth-century England or twenty-first century America — government has often relied on private entities to do what, for practical or constitutional reasons, it couldn’t entirely do itself. In such circumstances, common carrier doctrine and statutes have long been valuable. By tying the hands of communications carriers, such laws protect individuals from the full range of overt and more subtle government pressures for suppression.”

Government generally cannot avoid responsibility for violating rights by getting private entities to do its dirty work, Hamburger stressed. 

“If the Secretary of the Interior hires a private firm to bulldoze your house, it does not circumvent an unconstitutional taking of your property,” he wrote. “When the Department of Education reaches an understanding with a university to censor your speech, it has not avoided violating your freedom of speech — even though the arrangement is entirely voluntary. Similarly, when the government asks the platforms to censor on its behalf, it does not escape the First Amendment.”

Government may not suppress rights by working through private entities, Hamburger asserted. And he said that was especially clear when it used private platforms to impose a massive system of censorship. What’s more, Hamburger argued, the unconstitutionality of privatizing censorship through the platforms is clear from the First Amendment’s very text. 

“Whereas the amendment bars Congress from making laws ‘prohibiting’ the free exercise of religion, it forbids Congress from making laws ‘abridging’ the freedom of speech,” he wrote. “The amendment thus doesn’t merely condemn blunt government prohibitions of the freedom of speech. Rather, it more broadly forbids government from abridging or reducing the freedom of speech — even in the absence of a prohibition.”

Put more concretely, Hamburger argued, free exercise violations exist only when there is at least some degree of government pressure. 

“It need only be very mild economic pressure, … but some pressure seems requisite,” he wrote. “By contrast, free speech violations can exist without pressure. All that is necessary is a government abridgment or reduction of one’s freedom. Thus, even when the government merely cooperates with the platforms — let alone, when it secures their cooperation under the shadow of its power — its actions diminishing or otherwise abridging the freedom of speech are still unconstitutional.”

Finally, Hamburger asserted that many of the individuals whose speech is most at risk and least represented in the case were members of the silent majority, or what he called “the silenced majority.”

“Even in ordinary circumstances, the phenomenon known as the silent majority means that the justices typically get much of their information from only a small fraction of the public,” he wrote. “Most of the public are not members of the class whose voices dominate the media.”

In this case, however, Hamburger argued, the danger that many voices are beyond audible range of the justices is exacerbated by the censorship.

The platforms that are asking this court to protect their censorship have been stifling the voices of the many persons who are most likely to offer an alternative view of freedom of speech,” he wrote. “The platforms subsidize a vast array of sources of information. The platforms have spread out their business among major law firms, and even those firms that don’t get the business often want it.”

The platforms also subsidize many think tanks and intellectuals, including law professors of multiple perspectives, Hamburger wrote. 

“Facebook even draws leading law professors into its internal censorship court, the Oversight Board,” he wrote. “So when the platforms also censor speech, it is just the last and most substantial step in tilting information.”

Their censorship largely determines what information rises to the surface of the web and what voices are heard and how loud they seem, Hamburger asserted. 

“So, even if the justices are only unconsciously affected by what they hear, they must ask themselves, are they hearing America?” has asked. “Are they hearing the full range of scientific and medical information? Or are they hearing mostly an echo chamber framed by one of the parties?”

None of which was to say that the recent voices favoring “editorial discretion” would not have been as loud without the platforms’ funding, Hamburger acknowledged. 

“Nor is it to say that the platforms necessarily are boosting their speech claims on the web or censoring those who question their speech claims,” he wrote. “But there is no way of knowing. The power of the platforms to shape the national conversation became clear from their suppression of news about Hunter Biden’s laptop in the weeks before the last presidential election.”

Of course, Hamburger added, the court’s decision-making is the very opposite of an election. 

“But perhaps the platforms’ censorship and other manipulation of information also affects the conversation about what they call their ‘free speech,’” he wrote. “Again, there’s no way of knowing.”